Richard Stokley fell five votes short of the 15 needed from the full 28-judge 9th Circuit to win reconsider his looming execution in Arizona.
In an emergency order Tuesday, a majority of the active judges on the 9th U.S. Circuit Court of Appeals refused to reconsider a Nov. 16 decision allowing Stokley’s execution to proceed. His last appeal is to the U.S. Supreme Court. But at least 10 judges voted to reconsider and issued four separate dissents from majority vote.
On October 30, the Arizona Supreme Court set Stokley’s execution date for December 5.
Stokley was sentenced to die after he and Randy Brazeal kidnapped two 13-year-old girls, raped and strangled them in 1991. They girls were also stabbed to ensure they were dead and then thrown down a water-filled mine shaft.
Brazeal received a 20-year sentence and was released in 2011.
Stokley argued that a recent U.S. Supreme Court decision changed the law in a way that would significantly change his status. That ruling held that abandonment by appellate counsel could excuse errors by an inmate in a habeas claim. Stokley maintained that he should be given an evidentiary hearing to determine if he was abandoned by his appellate lawyer, and whether that affected his claim that the Arizona Supreme Court failed to consider mitigating evidence in his favor.
In one of the four separate dissents from denial of en banc review, Judge Stephen Reinhardt said, “This is a death penalty case in which, due to the panel’s perceived need to resolve, all-too-hastily, several important issues… the majority, without proper briefing, made a number of serious errors that warrant review by the en banc court.”
One of the newest members of the court, Judge Paul Watford wrote in dissent as well. He said, “I do not think there is any question here that the Arizona Supreme Court violated the rule established in Eddings v. Oklahoma. [That case held that a defendant is allowed to rely on any mitigating evidence that might convince a jury to reject a death sentence.]
The 9th Circuit currently has 28 active judges and it requires a majority of those voting to grant reconsideration – 15 votes. It is not certain that Stokley received only 10 votes. Other judges may have voted to reconsider but not signed on to the published dissents. But Stokley did not receive the 15 votes needed for review.
Joining Reinhard and Watford in dissent were Judges Kim Wardlaw, Marsha Berzon, Harry Pregerson, William Fletcher, Richard Paez, Ray Fisher and new appointees of President Obama, Morgan Christen and Jacqueline Nguyen.
Case: Stokley v. Ryan, No. 09-99004